[00:00:00] Speaker 00: May it please the court, my name is James Wagstaff. [00:00:05] Speaker 00: I'm here today on behalf of the Perez family. [00:00:08] Speaker 00: Raul and Brittany Perez, the parents are here in court today and my colleague Natalie Dreier is here in court who handled the entire investigation. [00:00:17] Speaker 00: This is a tragic injury case that calls out for equitable relief. [00:00:21] Speaker 00: Let's start with the first proposition. [00:00:24] Speaker 00: The trial court incorrectly ruled the statute involved was jurisdictional. [00:00:30] Speaker 00: It was a correct ruling 30 years ago. [00:00:33] Speaker 00: The Supreme Court has been very clear in the past 20 years, certainly post our bout, that to bring discipline to the word jurisdiction, to avoid its profligate use, claims processing rules are not jurisdictional. [00:00:48] Speaker 04: Well, just a minute. [00:00:50] Speaker 04: What case would suggest that it isn't? [00:00:53] Speaker 00: Kwan Fung Wong, Your Honor, would be a good one. [00:00:58] Speaker 04: Let's look at the statute. [00:01:02] Speaker 04: I mean, I looked at Wong and I looked at what happened in Wong and why it happened with Wong Tu. [00:01:10] Speaker 04: And Wong Tu was really one that was saying that a certain statute, which was [00:01:20] Speaker 04: 2401B was not jurisdictional. [00:01:25] Speaker 04: However, they couldn't find anything that was really linking 2401B to any jurisdictional statute. [00:01:33] Speaker 04: To get here at all, we've got to go with 28 USC 1346B1, right? [00:01:43] Speaker 00: That's the jurisdictional statute, not the procedure statute. [00:01:46] Speaker 04: I understand. [00:01:47] Speaker 04: That's the jurisdictional statute. [00:01:50] Speaker 04: And right there in 1346B1, it says, and I quote, subject to the provisions of Chapter 171 of this title, or in other words, subject to the provisions of this statute, which is 2675A, [00:02:12] Speaker 04: Subject to that, the district court shall have jurisdiction of civil actions on claims against the United States. [00:02:21] Speaker 04: So it seems to me that different than 2401, when you look at our statute, it's absolutely clear there is a relationship. [00:02:33] Speaker 04: and that this relationship is right there in the statute 1346B1, which confers the jurisdiction to the court, which is what we have to have. [00:02:45] Speaker 00: With all due respect, Your Honor, I disagree and I'll tell you why. [00:02:48] Speaker 04: Well, I understand you disagree, but I wanted to lay it out so you'd know why I'm getting where we are. [00:02:54] Speaker 00: Sure. [00:02:56] Speaker 00: In Kuifang Wang, the court said the mere relationship between statutes, a jurisdictional statute and a procedural statute, is not enough. [00:03:05] Speaker 00: That's number one. [00:03:06] Speaker 00: I understand your honor's reference. [00:03:08] Speaker 00: Since Kuifang Wang, starting as recently as Riley from the Supreme Court, Riley versus Bondi, the court has said it's more than just a relationship. [00:03:17] Speaker 00: It requires that there be a clear statement by Congress in the statute itself, not a related statute. [00:03:23] Speaker 00: A clear statement in the statute. [00:03:25] Speaker 04: That is... Just a minute. [00:03:26] Speaker 04: If the 1346B1 is the way we get jurisdiction at all over these tort claims, and right in there, in the statute, they write subject to the provisions of, and they say 171 of this title, but what they're really saying is 2675A [00:03:51] Speaker 04: then the district court shall have jurisdiction. [00:03:55] Speaker 04: That seems to me to be dead on statutory interpretation. [00:04:00] Speaker 00: It is not, and here's why. [00:04:02] Speaker 00: Since Kuifang Wang, the Supreme Court on multiple occasions, as recently as a couple weeks ago, has found that it's not enough to have a relationship... Congress has an easy way they can do it. [00:04:13] Speaker 00: When they go to the statute, which by the way 171 calls it a procedural statute, they have to say the words jurisdiction. [00:04:20] Speaker 00: That's clear-cut. [00:04:22] Speaker 00: Kuifang Wang said, for our case, the fact that 1346 refers to different statutes is not enough. [00:04:28] Speaker 00: Since Kuifang Wang, it says relationship alone is not enough. [00:04:33] Speaker 04: If you will... Let's back up. [00:04:36] Speaker 04: I'm going to go right to Wang. [00:04:38] Speaker 04: The Supreme Court in Wong said, and this is 411-412, whereas 2401B houses the FTC's time limitations, a different section confers power on the district court to hear FTC claims. [00:04:54] Speaker 04: Section 1346B1, District Court shall have exclusive jurisdiction over tort claims against the United States. [00:05:03] Speaker 04: Nothing conditions the jurisdiction grant on limitation periods or otherwise links. [00:05:09] Speaker 04: Treating 2401B's time bars as jurisdictional would thus divide the structural divide. [00:05:18] Speaker 04: Okay, so I apply that language to this statute which I'm looking at, which is 2675A, and they can't say that at all. [00:05:29] Speaker 04: It definitely is there. [00:05:32] Speaker 04: And it definitely says it's subject to it. [00:05:37] Speaker 00: If it were the last word, Your Honor, I might do that. [00:05:39] Speaker 00: It's not the last word. [00:05:41] Speaker 00: The United States Supreme Court since has said there is a presumption against defining jurisdiction unless it is clearly stated in the statute itself, not a related statute. [00:05:50] Speaker 02: So let me ask you this, counsel, because I want to make sure that you address the government's argument that it really doesn't matter for purposes of [00:05:59] Speaker 02: 2675A, whether it's jurisdictional or claim processing rule, because even assuming that it's not jurisdictional, the requirement is still mandatory. [00:06:08] Speaker 02: And so therefore, there's no accrual exception that can be applied. [00:06:13] Speaker 02: And it seems to me that McNeil squarely addressed this issue. [00:06:18] Speaker 02: So how do you respond to that? [00:06:19] Speaker 00: Well, McNeil does not talk about jurisdiction at all. [00:06:21] Speaker 00: The Seventh Circuit in McNeil didn't talk about jurisdiction. [00:06:23] Speaker 00: They said mandatory. [00:06:24] Speaker 00: I hear you. [00:06:25] Speaker 00: But once it's not jurisdictional, [00:06:28] Speaker 00: We now have the court being obliged to deal with waiver, estoppel, and to deal with the tolling. [00:06:35] Speaker 02: I think what the Supreme Court was talking about in McNeil is, in essence, procedural rules that are mandatory. [00:06:44] Speaker 02: So then my question to you is, why isn't this a procedural rule that's mandatory? [00:06:48] Speaker 02: No action shall be filed until the claims presented in a final denial. [00:06:52] Speaker 00: Oh, it's an affirmative defense, Your Honor. [00:06:54] Speaker 00: exhaustion by the Supreme Court, as my citation to many cases, exhaustion is an affirmative defense. [00:07:00] Speaker 00: In October of 2022, the government did not allege exhaustion of remedies as an affirmative defense. [00:07:05] Speaker 00: The court did not address waiver because it concluded it was jurisdictional. [00:07:08] Speaker 00: So even though it's mandatory, as Your Honor knows, the Supreme Court has told us in Riley and his progeny, Wilkins, other cases, even though it's mandatory, [00:07:17] Speaker 00: The court must still consider is there a possibility that the government doesn't meet its burdens in some of those areas. [00:07:23] Speaker 03: Doesn't Wong itself answer the question by saying even mandatory requirements does not make them jurisdictional? [00:07:30] Speaker 00: It does. [00:07:31] Speaker 00: And the Supreme Court has repeatedly said that as early as Erwin. [00:07:36] Speaker 03: So in this case, Your Honor... Because the statute in Wong, the statute of limitations, is also mandatory. [00:07:43] Speaker 03: It's also framed in mandatory language. [00:07:46] Speaker 03: It is. [00:07:46] Speaker 03: But there's still equitable tolling allowed in that analysis. [00:07:49] Speaker 00: And Your Honor, there's a case that I think is so valuable for us to look at, which is Forrester versus Chertoff, not cited by the government in their brief, but in ours. [00:07:57] Speaker 00: In Forrester, you had, like this case, [00:07:59] Speaker 00: a statute that's mandatory that says you must give the EEOC notice before you sue. [00:08:04] Speaker 00: Just like our statute, a presentment statute, a prematurity statute. [00:08:08] Speaker 00: The Ninth Circuit said in that case, it's not jurisdictional. [00:08:11] Speaker 00: That's number one. [00:08:13] Speaker 00: Number two, and that makes sense because there's no clear statement. [00:08:17] Speaker 00: If you go to the statute, it doesn't have the word jurisdiction anywhere in that statute. [00:08:20] Speaker 02: So your best argument on McNeil's discussion of why it's so important to [00:08:25] Speaker 02: strictly adhere to 2675 because as the Supreme Court says, that statute governs a mass, you know, huge multitude of cases, and so therefore strict adherence is important. [00:08:39] Speaker 02: And your argument is, well, it's an affirmative defense, so it doesn't get triggered. [00:08:43] Speaker 00: That's an argument. [00:08:44] Speaker 00: It's waiver. [00:08:45] Speaker 00: I have a stop and tolling as well. [00:08:47] Speaker 00: But your honor. [00:08:47] Speaker 04: But if we're going to do if we're going to look at the mandatory to the district court, the district court didn't even address mandatory, did it? [00:08:55] Speaker 00: It did not. [00:08:56] Speaker 00: And more than that, the district court. [00:08:58] Speaker 04: Do I need to on appeal send it back to the district court? [00:09:02] Speaker 00: At a minimum, your honor, because the district court didn't reach the very issues we're talking about. [00:09:06] Speaker 03: Well, can I [00:09:08] Speaker 03: So here's my concern. [00:09:15] Speaker 03: We do have Brady and Gervais and it's established in our circuit, in all circuits, that a three-judge panel cannot overrule another one unless [00:09:24] Speaker 03: there's intervening Supreme Court authority that's clearly irreconcilable with it. [00:09:28] Speaker 03: And you may very well be right. [00:09:30] Speaker 03: You may have a basis to say that in light of the change in the trend line of the Supreme Court cases, this particular statute 2675 should be deemed non-jurisdictional. [00:09:43] Speaker 03: But isn't that more appropriate for an en banc panel to take up? [00:09:47] Speaker 00: No, Your Honor, I'll tell you why. [00:09:49] Speaker 00: If there's intervening authority, [00:09:51] Speaker 00: And you're not acting on it new. [00:09:53] Speaker 00: In both Cascadia and in Stein, they're a good case to read, this circuit in a panel decision said, we used to always say, you know, I'm old enough to remember when exhaustion was always jurisdictional. [00:10:05] Speaker 00: And then Fort Bend came down, I have to start, I teach civil procedure. [00:10:08] Speaker 00: And one of my points of this entire case is we shouldn't have to have a procedure teacher to figure out what happens. [00:10:14] Speaker 00: In the case that's fully investigated by the government, in which all the facts were known and they said their investigation was done, [00:10:20] Speaker 00: here in Stein, for example, the court says, we'd rather not be wrong. [00:10:25] Speaker 00: We were wrong before, and we're fixing it because the Supreme Court has given us authority. [00:10:29] Speaker 00: Our bow and following, and particularly Riley. [00:10:32] Speaker 04: Well, but frankly, in Stein, there was no way that the statute could have been read to be jurisdictional, period. [00:10:40] Speaker 04: and that's why I mean there's no way that the statute could have been read to go the way it had been read before and so the Stein panel took it up and said no way and we're just going to do something. [00:10:56] Speaker 04: Here that's why I gave you, that's why I ask you these questions. [00:11:01] Speaker 04: I'm not sure I can say with definity, definiteness, whatever you want to call it, that it is [00:11:10] Speaker 04: that it absolutely clear that it isn't. [00:11:13] Speaker 04: So that's why I was asking the same question as my good colleague did. [00:11:19] Speaker 04: With all these cases in the Ninth Circuit that say it's jurisdictional, it seems to me your argument is better laid in a jurisdictional basis to an en banc court than us. [00:11:31] Speaker 00: That was the same argument made in Cascadia. [00:11:34] Speaker 00: I know. [00:11:34] Speaker 00: But Your Honor, for 30 years I taught the first-to-file rule was jurisdictional. [00:11:39] Speaker 00: 30 years. [00:11:40] Speaker 00: For 30 years, Cascadia says the Ninth Circuit in panel decisions had ruled that the notice requirement for endangered species acts was jurisdictional. [00:11:48] Speaker 00: And it ain't anymore, excuse my language. [00:11:51] Speaker 00: And the reason the court says because the intervening authority says there must be a clear statement in the statute itself. [00:11:57] Speaker 00: Now, Your Honor, my time is at its state, but let me just, because I don't want to ignore it. [00:12:01] Speaker 02: Did you want to save the rest of your time? [00:12:03] Speaker 00: I do. [00:12:04] Speaker 00: And obviously, Your Honor, the second lawsuit is [00:12:07] Speaker 00: cures any issues that we have here. [00:12:09] Speaker 00: I'd like to address that, but I appreciate the questions. [00:12:12] Speaker 00: I'll save the time and I'll try and deal with that on the rebuttal. [00:12:15] Speaker 00: Thank you, Your Honors. [00:12:15] Speaker 02: Thank you. [00:12:25] Speaker 01: Thank you, and may it please the court, Wailoo Shaw for the United States. [00:12:29] Speaker 01: I'd like to begin with the jurisdictional question that the panel was just discussing and the [00:12:35] Speaker 01: clearly a reconcilable standard for overruling a prior panel decision or recognizing that a prior panel decision of this court is no longer good law. [00:12:43] Speaker 01: And so what this court said in FTC versus consumer defense is that if we can apply our precedent consistently with that of the higher authority, we must do so. [00:12:53] Speaker 01: And here, it's clearly possible to continue applying this court's precedents, recognizing that the presentment requirement is jurisdictional, consistent with intervening Supreme Court precedent. [00:13:05] Speaker 01: for example, because at least two circuits have actually found those cases to be the Supreme Court precedent and their circuit precedent, establishing the same proposition to be consistent. [00:13:16] Speaker 01: And so those are the en banc Eighth Circuit and the Fourth Circuit, as well as the Third Circuit, which recognize that the present, I'm sorry, that the some certain requirement which uses similar language is also jurisdictional. [00:13:28] Speaker 03: Let me ask, were those circuits decided before or after Arbaugh and the range of these cases that have come into play? [00:13:37] Speaker 01: Yes, I'm only speaking to courts that have not only addressed the issue after Arbaugh, but have expressly discussed post-Arbaugh Supreme Court precedent and recognize that their [00:13:49] Speaker 01: existing circuit precedent is consistent with that intervening Supreme Court precedent. [00:13:53] Speaker 03: So is it your view that if there is this existing circuit split, a three-judge panel couldn't find that something's clearly irreconcilable because the terrain is too uncertain for a panel to do it itself? [00:14:06] Speaker 01: No, I'm not saying that, but I do think that the fact that two circuits have in fact recognized that those propositions can be reconciled provides very strong evidence that in fact this court's existing precedent to the same effect is also [00:14:22] Speaker 01: Can be applied consistent with intervening Supreme Court authority? [00:14:27] Speaker 03: Let me press you a little bit with with with Wong which which is a statute of limitations also FTC a Using mandatory language and the Supreme Court affirmed our circuit in finding that this was non-jurisdictional What is there something different in your view about a statute of limitations bar versus an exhaustion one? [00:14:49] Speaker 03: What makes those two things different? [00:14:50] Speaker 01: I think they are very different, and I can point to two kinds of differences, one in the text and two in the purposes of the statute. [00:14:59] Speaker 01: And so first, with regard to text, the Supreme Court has said very clearly in Fort Bend County that Congress may make prescriptions jurisdictional by incorporating them into a jurisdictional provision. [00:15:12] Speaker 01: And then in Wong, in this court's opinion, this court's en banc opinion that the Supreme Court affirmed in Wong, this court said, [00:15:19] Speaker 01: The exhaustion requirement, unlike the section 2401b limitation period, is tied by explicit statutory language to jurisdictional and was deemed jurisdictional in Brady, which is another panel decision of this court from 2000. [00:15:35] Speaker 01: So there, the Ambach Ninth Circuit recognized that there was an express textual link for the presentment requirement that does not exist for the [00:15:45] Speaker 01: for the statute of limitations, and that's because the jurisdictional provision, Section 1346B, begins with the clause subject to the provisions of Chapter 171. [00:15:56] Speaker 01: And the presentment requirement in 2675A is in Chapter 171. [00:16:02] Speaker 01: Section 2401 is not. [00:16:04] Speaker 01: That is the limitations period. [00:16:06] Speaker 01: That is in Chapter 161. [00:16:09] Speaker 01: And so therefore the textual argument does not apply. [00:16:12] Speaker 03: What about Mr. Wax's argument that just having or even referencing another statute isn't enough to satisfy the clear statement rule? [00:16:20] Speaker 01: It's not just some sort of reference to another provision. [00:16:25] Speaker 01: The grant of provision in Section 1346B begins with the clause subject to the provisions of Chapter 171 and makes clear [00:16:35] Speaker 01: that therefore that that the presentment requirement is a condition precedent to the exercise of district court jurisdiction so it's not just you know that they happen to be in close proximity in the statute it is a express requirement that [00:16:50] Speaker 01: the condition be satisfied before the assertion of jurisdiction. [00:16:54] Speaker 03: Have you read Coppin, the Sixth Circuit case? [00:16:56] Speaker 03: I have. [00:16:56] Speaker 03: I mean, it takes up that issue because I think the Eighth Circuit had relied on it and didn't agree with it because of the notion that even if there's a reference to it, that doesn't imbue it with some sort of sense that Congress intended for this to be jurisdictional. [00:17:14] Speaker 03: And I think, you know, and Riley recently kind of does reaffirm that you have to have an exceedingly clear signal from Congress to decide, even if it's nested within a jurisdictional provision, that it too must be jurisdictional. [00:17:28] Speaker 01: With all due respect to the Sixth Circuit, I think that that reading entirely just reads the subject two clause out of the statute. [00:17:36] Speaker 01: Under that reading, that clause is not doing any work. [00:17:40] Speaker 01: If that clause is to mean anything, it has to be [00:17:43] Speaker 01: that the grant of subject matter jurisdiction in 1346B is somehow limited by something in Chapter 171. [00:17:50] Speaker 01: If that's not the case, there was no reason for Congress to put that clause in there. [00:17:54] Speaker 01: And I would also point out that the Supreme Court in the Brownback case has already said that every element of Section 1346B is jurisdictional. [00:18:04] Speaker 01: So all the elements of a [00:18:07] Speaker 01: of an FTCA claim are, in fact, jurisdictional. [00:18:09] Speaker 01: So it would be odd if the subject two clause that precedes all of those elements would not be jurisdictional. [00:18:16] Speaker 01: But I would also point out that, again, we are all looking at this issue with the overlay of the fact that this court is not writing on a clean slate, that there is a longstanding body of decisions of this circuit that hold that the presentment requirement is jurisdictional. [00:18:35] Speaker 01: So it's not just a question of, [00:18:37] Speaker 01: You know, what would the court say if it were considering this matter as a matter of first impression? [00:18:44] Speaker 01: The question is, are those decisions clearly irreconcilable with Supreme Court precedent? [00:18:49] Speaker 01: And we would submit that they are not. [00:18:52] Speaker 04: What about the second issue about the correctly dismissing the second lawsuit? [00:18:59] Speaker 01: With regard to the second lawsuit, [00:19:02] Speaker 01: The reason that the second lawsuit was correctly dismissed was that plaintiffs' counsel filed that lawsuit out of time. [00:19:08] Speaker 01: So in a... Well, what they say, the language wasn't clear. [00:19:15] Speaker 04: The language was maybe even wrong. [00:19:18] Speaker 04: It's hard to... And so therefore, why should we have had to do that? [00:19:23] Speaker 01: It's hard to imagine how the language could be any more clear. [00:19:27] Speaker 01: So I'm reading now from the denial letter of August 25th, 2022, which is in the record at 2ER226. [00:19:38] Speaker 01: And it says that your claim is also hereby denied by the United States Department of Agriculture. [00:19:46] Speaker 01: I am required by law to inform you that if you are dissatisfied with the denial of your claim, [00:19:51] Speaker 01: under the Federal Tort Claims Act, you may file suit in an appropriate United States District Court no later than six months after the date of mailing of this notification of denial. [00:20:01] Speaker 04: They say the magic words are not there in the text. [00:20:06] Speaker 04: The magic words are not there on the subject line. [00:20:09] Speaker 04: And therefore, that's kind of nebulous. [00:20:12] Speaker 01: I mean, I think there is no requirement of magic words. [00:20:15] Speaker 01: There is no statute or regulation or case law saying that [00:20:19] Speaker 01: The denial letter has to include the word final in it. [00:20:22] Speaker 01: I mean, the language is your claim is hereby denied. [00:20:26] Speaker 01: And so, you know, it's not clear what else the agency could have said on that score. [00:20:31] Speaker 04: They do... Was there ever a motion for reconsideration filed? [00:20:36] Speaker 01: No. [00:20:36] Speaker 01: Plaintiffs' Council did not file a motion for reconsideration. [00:20:39] Speaker 01: And that would have been available to them if they felt like the legal reasoning of the denial letter [00:20:44] Speaker 01: was erroneous, for example, by referring to a deemed denial based on their filing of a lawsuit. [00:20:51] Speaker 01: They could have filed a motion for reconsideration with the agency, which would have told the deadline for filing a district court lawsuit, or they obviously could have just filed their lawsuit in district court based on the timeline that was expressly stated in the letter, but they did not do so. [00:21:09] Speaker 03: Could we construe the government's filing of an answer in the district court as an acquiescence as to timeliness of either the first or the second lawsuit? [00:21:21] Speaker 01: I don't see how that would have any bearing on the second lawsuit. [00:21:25] Speaker 01: I mean, it's just an entirely different litigation, so I'm not sure what effect that would have. [00:21:34] Speaker 01: I don't see how it would have any effect on the second lawsuit. [00:21:37] Speaker 01: Plaintiffs do argue [00:21:39] Speaker 01: that the government's failure to expressly cite presentment as an affirmative defense in its answer in the first litigation constitutes a waiver or forfeiture of that. [00:21:51] Speaker 01: And I'm happy to discuss that. [00:21:54] Speaker 03: But I take it that would only apply if we did not find that it was a jurisdictional requirement. [00:21:59] Speaker 01: That's exactly right, Your Honor. [00:22:01] Speaker 01: And for all the reasons that I said earlier, I don't think that's an option that's available to this court. [00:22:09] Speaker 01: without going on bonk. [00:22:11] Speaker 02: And that's related to my discussion with counsel regarding McNeil and their argument that it's really an affirmative defense that gets raised at later stages. [00:22:22] Speaker 02: How do you respond to that? [00:22:23] Speaker 01: Sorry, to the proposition that this is a mandatory claim processing rule? [00:22:30] Speaker 01: Right. [00:22:31] Speaker 04: It isn't jurisdictional, but mandatory. [00:22:33] Speaker 01: Right. [00:22:34] Speaker 01: So if this court were to [00:22:36] Speaker 01: conclude, contrary to existing circuit precedent, that the presentment requirement is a mandatory claim processing rule and not a jurisdictional requirement. [00:22:45] Speaker 01: The only implication of that, and the Supreme Court has made this clear, is that waiver and forfeiture would be possible. [00:22:54] Speaker 01: It does not mean that equitable exceptions are available, and the Supreme Court clearly established that proposition in McNeil. [00:23:00] Speaker 01: So regardless of what McNeil said about jurisdiction, it very clearly analyzed the text of the statute and concluded that present amendment is mandatory and must be strictly enforced. [00:23:11] Speaker 01: So there is no room after McNeil to argue. [00:23:14] Speaker 02: So no equitable exceptions, but you'd still have waiver forfeiture. [00:23:17] Speaker 01: Yes. [00:23:18] Speaker 01: And so as I understand it, the Supreme Court has basically found there to be three categories. [00:23:23] Speaker 01: There's jurisdictional requirements, which are not subject to any equitable exceptions or forfeiture. [00:23:28] Speaker 01: mandatory claim processing rules, which are not subject to equitable exceptions, but can be waived or forfeited. [00:23:36] Speaker 01: And then, you know, other kinds of rules, other kinds of claim processing rules, like statutes of limitations that are subject to both. [00:23:44] Speaker 01: Equitable exceptions and wavering forfeiture. [00:23:46] Speaker 01: So I think we're in the middle category if it's not jurisdictional. [00:23:50] Speaker 03: Why doesn't Wong undercut your argument? [00:23:51] Speaker 03: Because the statute of limitations was also deemed mandatory in Wong. [00:23:57] Speaker 03: So why do some mandatory rules allow for equitable exceptions and not others? [00:24:03] Speaker 01: I don't think that the statute of limitations in Wong was deemed mandatory. [00:24:07] Speaker 01: Your honor may be referring to [00:24:09] Speaker 01: the difference between mandatory language and a mandatory claim processing rule. [00:24:14] Speaker 01: So the Supreme Court has sometimes said that even mandatory language like the word shall does not necessarily mean that there are no equitable exceptions. [00:24:24] Speaker 01: So that's what the Supreme Court found in Wong, for example. [00:24:27] Speaker 01: There is a presumption under the Irwin decision of the Supreme Court that [00:24:31] Speaker 01: Limitations periods are subject to equitable tolling now. [00:24:35] Speaker 01: There is no similar presumption for exhaustion requirements or presentment requirements and a mandatory claim processing rule is not the same as a Simply a statutory provision that uses the word shall the Supreme Court's precedent that we cite in our briefs makes absolutely clear that when you have a mandatory claim processing rule [00:24:57] Speaker 01: There are no equitable exceptions, although again, waiver or forfeiture are possible. [00:25:02] Speaker 02: Can I have you in the few minutes you have left to address equitable tolling as to the second lawsuit? [00:25:08] Speaker 02: And specifically on the question of diligence, it's not just the one portion of the letter that you read out. [00:25:14] Speaker 02: It's the whole sequence creates confusion with the filing of the first lawsuit and the multiple letters, then the initiation of the second lawsuit. [00:25:23] Speaker 02: Can you give me your best argument on that? [00:25:25] Speaker 01: Yes. [00:25:27] Speaker 01: There are many reasons why plaintiffs, there is no extraordinary circumstance. [00:25:31] Speaker 01: That's the other requirement for equitable tolling. [00:25:33] Speaker 01: There is no extraordinary circumstance that prevented plaintiffs from timely filing their suit. [00:25:39] Speaker 01: They had every reason to know of what they needed to do. [00:25:42] Speaker 01: So for example, the government, well, the FTCA's requirements are absolutely clear about what needs to happen. [00:25:48] Speaker 01: There's two years to file your administrative claim. [00:25:51] Speaker 01: After you have to wait six months, [00:25:54] Speaker 01: after the filing of your administrative claim or until the actual denial of that claim to file your district court lawsuit, and you have six months from actual denial to file that lawsuit. [00:26:04] Speaker 01: So the requirements of the statute are absolutely clear. [00:26:06] Speaker 01: There was no reason that plaintiffs needed the government to inform them of the time limits to the statute. [00:26:13] Speaker 01: It was plaintiffs' counsel's obligation to timely present their clients' claims. [00:26:19] Speaker 01: Even plaintiffs themselves even wrote in their complaint that the [00:26:24] Speaker 01: the deemed denial date, the earliest date on which they could have filed a lawsuit was, I think, June 3rd. [00:26:29] Speaker 01: But they actually filed their lawsuit several days before that. [00:26:32] Speaker 01: So they knew of the requirements. [00:26:33] Speaker 01: And then on top of all of that, the government informed Plaintiffs' Council of all the facts that they needed to timely preserve their clients' claims. [00:26:45] Speaker 01: So in the denial letter, the agency said that the claim was denied and that plaintiffs had six months to file a lawsuit. [00:26:51] Speaker 01: On February 9th, 2023, the government informed plaintiffs' counsel expressly of the government's position that PREZ 1 was premature and that the government would seek to dismiss. [00:27:03] Speaker 01: So from February 9th to February, I believe it was February 23rd when the deadline expired, they had at least two weeks to simply refile the same complaint that they filed in PREZ 1. [00:27:14] Speaker 01: If they had done so, they would have been able to preserve their rights, but plaintiffs' counsel did not [00:27:19] Speaker 01: did not do so, and there's no basis to excuse plaintiff's counsel's failure to comply with the requirements of the FTCA here. [00:27:27] Speaker 01: If the court has no further questions, we ask that the judgment of the district court be affirmed. [00:27:32] Speaker 00: Thank you, counsel. [00:27:33] Speaker 00: Thank you. [00:27:35] Speaker 00: Your honor, affirmative defenses, it is an affirmative defense, and a Rule 8C, it shall be included, it was not. [00:27:42] Speaker 00: The only possible exception is if they can show there was no prejudice to plaintiff. [00:27:48] Speaker 00: the district court didn't reach that. [00:27:49] Speaker 00: At a minimum, there must be a remand to determine if that, affirmative defense waiver. [00:27:54] Speaker 00: Your honors, they then litigated the case and never raised the subject. [00:27:58] Speaker 00: I want to talk about confusion and equitable tolling. [00:28:01] Speaker 00: And Forrester versus Chertoff is such an important read because it's the only case that deals with prematurity filing before you give the government notice. [00:28:10] Speaker 00: And in that case, the court finds not only it's not jurisdictional, [00:28:14] Speaker 00: Forrester versus Chertoff is an important case and not cited by the government because it also says that in that case, the interests of justice when the government knew all about it. [00:28:25] Speaker 00: Let me say this. [00:28:27] Speaker 00: This is not a case where someone waited five years to tell the government. [00:28:30] Speaker 00: This is not a case where the government suffered a problem with its investigation. [00:28:34] Speaker 00: This is a case where my clients almost immediately after their son's death and the injuries caused contacted the government. [00:28:40] Speaker 00: They investigated it for over two years. [00:28:43] Speaker 00: My client and their lawyer, Ms. [00:28:45] Speaker 00: Dreier here, was told the investigation was complete. [00:28:48] Speaker 00: And then she says, an email, can I file? [00:28:52] Speaker 00: They didn't say anything. [00:28:53] Speaker 00: So she's lulled. [00:28:54] Speaker 00: But lulling's not enough for reclable tolling. [00:28:56] Speaker 00: There's more. [00:28:56] Speaker 00: Next is the letters. [00:28:59] Speaker 00: This letter, I was brought in this case after it all happened. [00:29:02] Speaker 00: And I'm a procedure teacher. [00:29:03] Speaker 00: And I said, huh. [00:29:04] Speaker 00: That letter says, as a result of your filing, it's denied. [00:29:08] Speaker 00: That's wrong. [00:29:09] Speaker 00: their own arguments such as a nullity under McNeil. [00:29:12] Speaker 00: Therefore, it's not denied as a result of filing. [00:29:14] Speaker 00: It's a misnomer. [00:29:15] Speaker 00: But there's more. [00:29:17] Speaker 00: The government then is very important. [00:29:19] Speaker 00: The government's lawyer in an email of April the 13th and then in a filing on April the 14th says, your earliest possible date to file is October 18th. [00:29:30] Speaker 00: Now, if the letters were valid letters, that, of course, would have been one day after the letter you could have filed. [00:29:35] Speaker 00: Here's what they meant in citing 2675A. [00:29:39] Speaker 00: They said, we don't think it was denied. [00:29:41] Speaker 00: Therefore, it's deemed denied. [00:29:44] Speaker 00: You can't sue under McNeil until it's deemed denied on the 18th of October. [00:29:48] Speaker 00: That's the only way to read those statements, that they concluded, lawyers who know the statute very well, they concluded that it was deemed denied, not denied. [00:29:58] Speaker 00: Otherwise, you can make no sense of that statement. [00:30:00] Speaker 00: And that's what they tell the court. [00:30:03] Speaker 00: If it's deemed denied October 18th, our filing on April the 17th is within six months. [00:30:08] Speaker 00: It's timely. [00:30:10] Speaker 00: The second suit. [00:30:11] Speaker 00: So I got brought in and said, huh, I think it's not jurisdictional. [00:30:15] Speaker 00: I think they should have had an affirmative defense. [00:30:16] Speaker 00: But let's use belt and suspenders to hold our pants up. [00:30:19] Speaker 00: And let's file a protective second suit, because this letter is very confusing. [00:30:24] Speaker 00: There was an earlier letter. [00:30:25] Speaker 00: Who knows which one applies? [00:30:27] Speaker 00: There was no evidence. [00:30:29] Speaker 00: Ms. [00:30:30] Speaker 00: Dryert signed a declaration that said, I thought that they thought the first one was good enough, because they didn't say drop the first suit. [00:30:36] Speaker 00: The government there, but here's the big thing. [00:30:39] Speaker 00: How else can you make sense of the October 18th date that they told us about unless they concluded those letters were not denials? [00:30:47] Speaker 00: Therefore, the second lawsuit is fine. [00:30:49] Speaker 00: And lastly, Your Honor, my last 12 seconds. [00:30:52] Speaker 00: Equitable tolling is designed to protect against the loss of rice on rigid interpretations of statutes. [00:31:08] Speaker 00: equitable tolling is presumed. [00:31:10] Speaker 00: We know that from Erwin. [00:31:12] Speaker 00: Chertoff tells us that at the interests of justice, in that case, you know what happened? [00:31:16] Speaker 00: The lawyer filed early because they thought they had to, just like Ms. [00:31:19] Speaker 00: Dreyer did. [00:31:20] Speaker 00: She thought the state statute's running, and so she filed. [00:31:23] Speaker 00: And now they want to turn into a malpractice suit, by the way. [00:31:26] Speaker 00: The fact of the matter is, is that in this case, under Chertoff, Forrester versus Chertoff, I didn't mean to point, Your Honor, Forrester versus Chertoff tells us that if the interests of justice [00:31:37] Speaker 00: are going to be satisfied. [00:31:39] Speaker 00: I can't think of anything more of the interest of justice in this case than allowing this family to litigate a case involving the loss of their child's life as a result of a tree that should have been properly pruned. [00:31:50] Speaker 00: Your honor, that's why equity resides in this court. [00:31:54] Speaker 00: To do justice, to allow this lawsuit to go forward, at a minimum, your honor, [00:31:58] Speaker 00: It's a remand to determine the issues this court never, the trial court never reached. [00:32:02] Speaker 00: Thank you, Your Honor. [00:32:03] Speaker 02: Thank you very much. [00:32:05] Speaker 02: Thank you to both sides for your arguments this morning. [00:32:08] Speaker 02: It's a tragic case and our sympathies to your clients, family, counsel. [00:32:14] Speaker 02: We're here trying to grapple with some difficult legal issues and we certainly very much appreciate arguments from both sides. [00:32:22] Speaker 02: The matter submitted.